81R9829 KSD-F

By: Rodriguez H.B. No. 2054

A BILL TO BE ENTITLED

AN ACT

relating to the conditions of employment for firefighters employed by certain districts and entities; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subtitle C, Title 5, Local Government Code, is amended by adding Chapter 179 to read as follows:

CHAPTER 179. CONDITIONS OF EMPLOYMENT FOR FIREFIGHTERS OF CERTAIN

DISTRICTS AND ENTITIES

Sec. 179.001. APPLICABILITY. (a) This chapter applies to a fire department of and firefighters employed by:

(1) an emergency services district that:

(A) was created under Chapter 775, Health and Safety Code;

(B) has a population of 30,000 or more; and

(C) except as provided by Subsection (b)(1), provides emergency medical services for a municipality whose firefighters are covered by Chapter 174; and

(2) an entity created by an interlocal agreement between two or more political subdivisions of this state.

(b) This chapter does not apply to:

(1) a fire department of and firefighters employed by an emergency services district that provides medical services for a municipality with a population of more than one million that has adopted Chapter 174; or

(2) a volunteer fire department or the members or employees of a volunteer fire department that is operating under a contract with an emergency services district.

(c) For purposes of this section, a reference to a municipality or a municipal official in a provision of law made applicable by this chapter to a district or entity described by Subsection (a) is considered to be a reference to the district or entity or the official of the district or entity responsible for the performance of the duty to which the provision applies.

(d) If this chapter applies to the fire department of and firefighters employed by an emergency services district and the population of the district decreases to less than 30,000, the applicability of this chapter in relation to the district is not affected.

Sec. 179.002. DEFINITIONS. In this chapter:

(1) "Emergency services employer" means an emergency services district created under Chapter 775, Health and Safety Code, or an entity created by an interlocal agreement between two or more political subdivisions of this state.

(2) "Firefighter" means a person defined as fire protection personnel under Section 419.021, Government Code.

Sec. 179.003. PAYROLL DEDUCTIONS; LONGEVITY PAY; CLASSIFICATION PAY; PENALTY. (a) Sections 141.008, 141.032, 141.033, and 141.034 apply to a firefighter employed by an emergency services employer.

(b) The penalty under Section 141.035 applies to a person who is in charge of the fire department of an emergency services employer or who is responsible for setting the compensation for firefighters employed by an emergency services employer in accordance with this section.

Sec. 179.004. ASSISTANCE; BENEFITS; WORKING CONDITIONS; PENALTY. Sections 142.001, 142.0013, 142.0015, 142.0016, 142.004, 142.005, 142.006, 142.008, and 142.009 apply to a firefighter employed by an emergency services employer.

Sec. 179.005. EXCLUSIVE APPEAL PROCEDURE. This chapter provides the exclusive procedure for the administration and appeal of a disciplinary action against a firefighter covered by this chapter.

Sec. 179.006. DISCIPLINARY SUSPENSION OR DISMISSAL. (a) The head of a fire department for just cause may suspend or dismiss from employment a firefighter for violating a rule of the fire department or of the emergency services employer. A rule described by this subsection must have been adopted by the governing body of the emergency services employer.

(b) A firefighter may be suspended for a reasonable period not to exceed 15 days or may be dismissed from employment with the fire department.

(c) If a department head suspends or dismisses a firefighter, the department head shall, within 120 hours after the hour of suspension or dismissal:

(1) file a written statement of the reasons for the suspension or dismissal with the governing body of the emergency services employer; and

(2) deliver in person to the firefighter a copy of the statement described by Subdivision (1) and a written statement that if the firefighter wishes to appeal the suspension or dismissal, the firefighter must file a written notice of appeal with the governing body not later than the 10th day after the date the firefighter receives the copy of the statement described by Subdivision (1) and the statement described by this subdivision.

(d) The written statement filed by the department head with the governing body under Subsection (c)(1) must list each fire department or emergency services employer rule allegedly violated by the firefighter and specifically describe the actions of the firefighter that allegedly violate the rule.

(e) A department head may not amend a written statement of the reasons for a firefighter's suspension or dismissal from employment submitted under Subsection (c).

Sec. 179.007. APPEAL OF DISCIPLINARY SUSPENSION OR DISMISSAL. (a) If a firefighter files a notice of appeal of the firefighter's suspension or dismissal from employment with the governing body of the emergency services employer, the governing body shall hold a hearing on the appeal and render a written decision not later than the 30th day after the date the governing body receives the notice of appeal from the firefighter. The firefighter and the governing body may agree to postpone the hearing for a definite period.

(b) In a hearing conducted under this section, the department head may only allege actions and rule violations included in the department head's original written statement submitted to the governing body of the emergency services employer under Section 179.006(c)(1).

(c) The governing body of the emergency services employer may deliberate in closed session after a hearing conducted under this section. In reaching its decision after the hearing, the governing body may not consider evidence that was not presented at the hearing. The governing body must vote on the decision regarding an appeal under this section in open session.

(d) In its decision, the governing body of an emergency services employer shall state whether the firefighter is:

(1) permanently dismissed from employment with the fire department;

(2) temporarily suspended from employment with the fire department; or

(3) reinstated to the firefighter's former position or status in the fire department.

(e) If in a decision rendered under this section the governing body of the emergency services employer finds that the period of disciplinary suspension should be reduced, the governing body may order a reduction in the period of suspension.

(f) A firefighter who is reinstated to the position or class of service from which the firefighter was suspended or dismissed is entitled to:

(1) full compensation for the actual time lost as a result of the suspension or dismissal at the rate of pay provided for the position held or class of service assigned; and

(2) restoration of or credit for any other benefits lost as a result of the suspension or dismissal, including sick leave, vacation leave, and service credit in a retirement system.

(g) The emergency services employer shall:

(1) make any standard payroll deductions for retirement and other benefits restored as provided by Subsection (f)(2) from any compensation paid under Subsection (f)(1); and

(2) make any of the employer's standard corresponding contributions to the retirement system or other applicable benefit system.

(h) A firefighter may be suspended or dismissed from employment only for a violation of the rules adopted by the governing body of the emergency services employer and only after a finding by the governing body of the truth of the specific charges made against the firefighter.

Sec. 179.008. APPEAL PROCEDURE. (a) A notice of appeal filed under Section 179.007 must:

(1) include the basis for the appeal and a request for a hearing; and

(2) contain a statement denying the truth of the charge as made, a statement taking exception to the legal sufficiency of the charge, a statement alleging that the recommended action does not fit the offense or alleged offense, or a combination of these statements.

(b) In each hearing, appeal, or review of any kind in which the governing body of the emergency services employer performs an adjudicatory function, the firefighter who is the subject of the hearing, appeal, or review is entitled to be represented by counsel or any other person the firefighter chooses. The hearing must be held in public.

(c) The governing body of the emergency services employer may issue subpoenas and subpoenas duces tecum for the attendance of witnesses and for the production of documentary material.

(d) The firefighter may request the governing body of the emergency services employer to subpoena any books, records, documents, papers, accounts, or witnesses that the firefighter considers pertinent to the case. The firefighter must make the request before the 10th day before the date the appeal hearing will be held. If the governing body does not subpoena the material, the governing body shall, before the third day before the date the hearing will be held, make a written report to the firefighter stating the reason the governing body will not subpoena the requested material. The report must be read into the public record of the hearing.

(e) Witnesses may be placed under the rule at a hearing conducted by the governing body of the emergency services employer.

(f) Only the evidence submitted at the hearing may be considered by the governing body of the emergency services employer.

(g) A public record of each proceeding shall be made, with copies available at cost.

(h) The governing body of the emergency services employer may designate three persons who are qualified voters within the employer's jurisdiction to serve as an appeal panel to hear and decide the appeal in lieu of the governing body. The appeal panel has the same powers and duties related to the appeal as the governing body, including the power to issue subpoenas.

Sec. 179.009. HEARING EXAMINER. (a) A firefighter may choose to appeal to a hearing examiner instead of the governing body of the emergency services employer. The appealing firefighter must submit to the governing body a written request as part of the original notice of appeal required under this chapter stating the person's decision to appeal to an independent third party hearing examiner.

(b) The hearing examiner's decision is final and binding on all parties. If the firefighter decides to appeal to an independent third party hearing examiner, the person automatically waives all rights to appeal to a district court except as provided by Section 179.010(e).

(c) If the appealing firefighter chooses to appeal to a hearing examiner, the firefighter and the department head, or their designees, shall first attempt to agree on the selection of an impartial hearing examiner. If the parties do not agree on the selection of a hearing examiner within 10 days after the date the appeal is filed, the parties shall immediately request a list of seven qualified neutral arbitrators from the American Arbitration Association or the Federal Mediation and Conciliation Service, or their successors in function. The firefighter and the department head, or their designees, may agree on one of the seven neutral arbitrators on the list. If the parties do not agree within five working days after the date they receive the list, each party or the party's designee shall alternate striking a name from the list, and the name remaining is the hearing examiner. The parties or their designees shall agree on a date for the hearing.

(d) The appeal hearing shall begin as soon as the hearing examiner can be scheduled. If the firefighter receives notice that the hearing examiner cannot begin the hearing within 45 days after the date of selection, the firefighter, within two days after receiving the notice, may call for the selection of a new hearing examiner using the procedure prescribed by Subsection (c).

(e) In a hearing conducted under this section, the hearing examiner has the same duties and powers as the governing body of the emergency services employer, including the power to issue subpoenas.

(f) In a hearing conducted under this section, the appealing firefighter shall pay the hearing examiner's fees and expenses. The party who calls a witness shall pay the costs of the witness.

Sec. 179.010. DISTRICT COURT PETITION. (a) A firefighter who is dissatisfied with the decision of the governing body of the emergency services employer may file a petition in a district court asking that the decision be set aside. The petition must be filed not later than the 10th day after the date the governing body's final decision is:

(1) sent to the firefighter by certified mail; or

(2) personally received by the firefighter or by the firefighter's designee.

(b) An appeal under this section is by trial de novo. The district court may grant the appropriate legal or equitable relief necessary to carry out the purposes of this chapter. The relief may include reinstatement with back pay if an order of suspension or dismissal is set aside.

(c) The court may award reasonable attorney's fees to the prevailing party and assess court costs against the nonprevailing party.

(d) If the court finds in favor of the firefighter, the court shall order the emergency services employer to pay lost wages to the firefighter.

(e) A district court may hear an appeal of a hearing examiner's award only on the grounds that the hearing examiner was without jurisdiction or exceeded the examiner's jurisdiction or that the order was procured by fraud, collusion, or other unlawful means.

(f) An appeal under this section must be brought in a district court having jurisdiction in the emergency services district or in a political subdivision in which the fire department is located, as applicable.

SECTION 2. This Act takes effect September 1, 2009.